Form I-9 is required for all new hires in the U.S. – both citizens and non-citizens – and the federal government has the authority to audit, or check the accuracy, of an employer’s Form I-9 paperwork. Think of it this way: The government requires citizens to pay taxes and submit tax returns annually.

Because you submit those forms to comply with the law, you may be subject to an audit of those returns.

If a dairy is targeted for an I-9 inspection, they will receive a written Notice of Inspection and given at least three business days to provide copies of their I-9 records. If Immigration and Customs Enforcement (ICE) finds discrepancies or errors in the paperwork, dairies may be forced to terminate employees, pay fines or – especially in the case of repeat offenders – face criminal charges.

Conducting your own audit of employee I-9 forms can alert dairies to these problems in advance and provide time to secure updated documentation from employees.

What are I-9 forms?

Form I-9 is a document used by the U.S. federal government to verify employment eligibility.


“All U.S. employers must ensure proper completion of Form I-9 for each individual they hire for employment in the U.S.,” according to the U.S. Citizenship and Immigration Services (USCIS) office. It is against the law to knowingly hire or continue employing individuals without the legal status to work.

Both employer and employee provide information in order to complete the form, but it is the employer’s responsibility to submit the form to the federal government. The employee is responsible for submitting documents to their employer that demonstrate proof of their identity and therefore their eligibility to legally work in the U.S.

Why should dairies audit I-9 forms?

Nicholas Nevarez Jr. is an immigration attorney who practices in Texas. He counts a number of dairies in both Texas and New Mexico as clients. And he advises them to be proactive when it comes to I-9 form preparedness.

“One tool utilized by ICE more than anything else recently is asking individuals where they work when stopped off-site, such as during a traffic stop,” Nevarez explains. “Their answer then prompts an audit or a raid for their employer.”

One reason to conduct internal audits is the widespread use of false documentation by dairy labor.

“I do not know an approximate amount of false identification used by individuals in the dairy industry,” Nevarez says. “Based on I-9 audits I conducted, the number is high.”

Earlier this year, the USCIS announced re-designs to both the Permanent Resident Card (PRC), or green card, and the Employment Authorization Document (EAD). Enhanced security features, including photos, are aimed at reducing fraud. Both items are acceptable documents for I-9 forms.

With the recent election of President Trump, Americans are growing louder in their calls for solutions to the country’s broken system of immigration. “I wonder how many people who hire these undocumented immigrants have been prosecuted?” asked one reader in a letter to the editor in the May 3, 2017 issue of USA Today.

“Cut down employment opportunities,” he argued, “and you will drastically cut down the undocumented immigrant population.”

President Trump is responding to the outcry by hiring more customs and border patrol agents as well as increasing the ranks of ICE. I-9 audits are one of the tools at their disposal, and dairies should expect use of this tool to continue expanding.

How to conduct an I-9 practice audit

1. Complete a Form I-9 for every employee on your dairy.

The website has document M-274, “Handbook for Employers: Guidance for Completing Form I-9,” available for assistance. The required instructions for employees are also available to download in Spanish from the site. “Employers are not ICE agents,” Nevarez counsels. “Employers are only required to accept documents that ‘reasonably appear to be genuine’ and ‘relate’ to the employee.”

See page 5 of the 15 pages of Form I-9 instructions for more details. Immigration attorneys such as Nevarez also provide training for employees tasked with human resource responsibilities.

2. Know which documents should be kept on file and which should not.

“Employers should only keep the I-9, along with the page wherein the I-9 directs the employees which documents are acceptable to procure employment (Lists of Acceptable Documents),” Nevarez says. “Employers should never keep copies of the documents presented to them by the employees, such as a Social Security card, driver’s license or Lawful Permanent Resident Card (PRC).”

Page 7 of Instructions to Form I-9 explicitly states, “Photocopying documents is voluntary unless you participate in E-Verify.” Nevarez also counsels clients to destroy the Form I-9s you are lawfully allowed to destroy. “Employers must retain completed Form I-9s for three years from the date of hire or one year from the date of separation, whichever is later,” he says.

3. Keep I-9 forms in a separate location from personnel files.

“Form I-9s are ICE’s window into your personnel files,” Nevarez says. “Consequently, it is imperative you limit the scope or size of the window.”

The I-9 forms should be physically maintained in a separate file or folder away from employees’ personnel files. Ideally, they should be located in separate file cabinets or different offices if possible. “Never keep Form I-9s with other employee personnel files,” he says.

4. Conduct two internal audits each year by two different individuals.

“It is best to have two individuals trained to complete Form I-9s in the office,” he says. “The individuals are able to audit the Form I-9s completed by the other individual.” During this process, your internal staff will be checking employment status and documentation as well as destroying forms that are no longer required.

Furthermore, “I advise they either stamp or notate on the Form I-9 when the internal audit was conducted,” he says. That documentation will be critical if you are audited by ICE.

5. Conduct one external audit every two years.

Have someone who is not an employee of your dairy conduct this external audit of your I-9 forms. This is the time to secure an immigration attorney if you are not already working with someone.

“I advise clients bring in an attorney every two years to audit the dairy or at least train the employees on proper Form I-9 completion,” Nevarez says. Changes to the system such as the new green card documentation will definitely continue to occur. Make sure to note external audits on the individual I-9 Forms in your files as well.

6. Deal with documentation problems quickly.

With the widespread use of false documentation, expect your audits to reveal discrepancies. Most managers use the opportunity to work with an employee to secure updated documentation. If that effort doesn’t address the problem, you might have to terminate their employment.

“I advise an employer to release an employee following written notice of the need to provide updated LPR cards or similar documents,” Nevarez explains. “The Form I-9 rules are strict, therefore I advise dairies to be proactive and give the employee ample notice to procure an unexpired document.” Note updates directly on the I-9 form. Remember, it’s better for you to know now than when facing a fine or criminal charge. That’s the entire reason for conducting regular audits.

‘Should I use E-Verify to audit my I-9 Forms?’

E-Verify is a free, internet-based system operated by USCIS in partnership with the Social Security Administration. It was created in 1997 to prevent illegal immigrants from holding jobs in the U.S.

Employers in all 50 states can determine the eligibility of employees by using the information provided in the I-9 form to match it against databases of government records. Some records – approximately 14 million to date – include photos. E-Verify alerts the employer if there is a discrepancy.

Some states, such as Arizona, Utah and Georgia, have mandatory E-Verify laws – and the number of these states is growing. A 2011 Supreme Court decision allows states to require the use of E-Verify. However, some states, such as California and Illinois, limit or discourage use of the program.

Check the laws that apply to your state. If E-Verify is required, your attorney may advise you use the system as part of your auditing process.

However, Nevarez is quick to discourage use of the program if it’s not required in your state. “Never participate in E-Verify,” he states adamantly. “Why would an employer ever choose to expose more material to the federal government, aka ICE? They are not your friends or helpful to employers.”

Create a written Form I-9 policy

Use this outline and consultation with your attorney to create a simple, written policy describing how your dairy completes I-9 forms and strives to comply with the laws. “Have a written policy,” he summarizes. “It does not have to (be) wide-scale or elaborate (like a Walmart), but it needs to identify proper Form I-9 completion and retention.”

“The instructions to the Form I-9 must always be presented to the employee when the employee is completing the I-9,” Nevarez explains. “Consequently, I advise clients to keep a copy of the instructions in the employee’s Form I-9 file.”

However, because the instructions total 12 pages, which would make for thick files on large dairies, employers can have one copy of the instructions available for the employees and a written policy telling all HR personnel it is mandatory to present instructions to employees.

“This will serve as proof to ICE your HR department is complying with all Form I-9 requirements,” Nevarez says.

Hopefully, you’ll never need the written policy or the documentation, but if you should receive notice of an I-9 inspection by ICE or be subjected to a formal raid on-site, your paper trail will be priceless.  end mark

Karena Elliott
  • Karena Elliott

  • International Freelance Writer
  • Amarillo, Texas